Devoted to Appellate Law and Practice Within the Sixth Circuit and Its Constituent States

Sunday, October 29, 2006

In a development that has many lawyers across the country wondering whether we are on the precipice of radical changes in multiple jurisdictions, New York has proposed new ethics rules which would place significant restrictions on lawyers' web logs (blogs or, more colloquially, blawgs), websites and e-mail communications. The rule changes would require all electronic communications to carry the word "ADVERTISEMENT." The definition of "advertisement" would also be revised to include "any public communication made by or on behalf of a lawyer or law firm about a lawyer or law firm, or about a lawyer's or law firm's services." See Section 1200.1(k) of the New York Ethics Rules.

Specifically, Section 1200.6 of the New York Ethics Rules, corresponding to DR 2-101 of the Code of Professional Responsibility, adds subparagraph (h) which provides, in pertinent part, that "computer-accessed communications" shall be labeled "Attorney Advertising" on the first page. In the case of electronic mail, the subject line must contain the notation "ATTORNEY ADVERTISING." New Section 1200.1(m) defines "computer-accessed communication" to mean:

any advertisement or solicitation that is disseminated through the use of a computer or other electronic device, including, but not limited to, web sites or pages, search engines, electronic mail, banner advertisements, pop-up advertisements, chat rooms, list servers, instant messaging, domain names, or other internet presences, and any attachments or links related thereto.

In addition to the broad definition of "advertisement" set forth above, the new rules correspondingly expand the definition of "solicitation" to include:

any advertisement or other communication directed to or targeted at a specific recipient or group of recipients, including a prospective client, or a family member or legal representative of a prospective client, concerning the availability for professional employment of a lawyer or law firm.

Section 1200.1(l). All of the new ethics rules proposed in New York may be found here.

In addition to blogs and e-mails, query whether the new rules would also apply to extranets and virtual private networks (VPNs) that many law firms maintain for their lawyers and clients? Stay tuned for further developments and elucidation in this emerging area of ethics issues and requirements.